P. v. Cota
Filed 9/25/07 P. v. Cota CA4/1
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COURT OF APPEA, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL COTA, Defendant and Appellant. | D050238 (Super. Ct. No. 201622) |
APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed as modified with directions.
A jury found Juan Manuel Cota guilty of grand theft of an automobile (Pen. Code,[1] 487, subd. (d)(1)) (count 1); unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) (count 2); receiving, concealing, or withholding a stolen vehicle ( 496d) (count 3); and misdemeanor giving false information to a peace officer ( 148.9, subd. (a)) (count 4). Cota waived his right to a jury trial on allegations of a prior section 496d conviction ( 666.5, subd. (a)) as to each of the first three counts; in a bifurcated hearing the court found these allegations true.
The court sentenced Cota to three years in prison: the three-year middle term for grand theft of an automobile, stayed terms ( 654) for unlawful driving or taking of a vehicle and receiving a stolen vehicle, and credit for time served for giving false information to a peace officer. Cota appeals, contending his convictions of unlawful driving or taking of a vehicle and receiving a stolen vehicle must be reversed because they are based on the same conduct as his conviction of grand theft of an automobile. The People concede the point.
BACKGROUND
On September 17, 2006, Bao Pham's mother's Jeep was parked outside Pham's workplace. It was locked. During a break, Pham saw Cota get into the Jeep, start it, and drive away. Pham chased Cota, first on foot, then in the car of a passerby, Johnnie Lee Branch, who gave Pham a ride. During the chase, Pham called the police on a cellular telephone. When Cota saw he was being followed he sped up and drove in circles. He stopped the Jeep in the middle of the street and got out, leaving the door open and the engine running. A screwdriver that Cota used to punch the ignition was on the passenger seat.
The police surrounded the area. An officer saw Cota asking for directions. Cota was sweating and out of breath. The officer detained Cota, who gave police incorrect names and an incorrect birthdate. Cota had documents belonging to Pham on his person. Pham identified Cota at a curbside lineup.
DISCUSSION
A defendant cannot be convicted of grand theft of an automobile and receiving the same vehicle as stolen property. (People v. Allen (1999) 21 Cal.4th 846, 851.) Nor can a defendant be convicted of grand theft of an automobile and unlawful driving or taking of a vehicle under Vehicle Code section 10851, subdivision (a) when both offenses are based on the same act. (People v. Allen, supra, at p. 851; People v. Barrick (1982) 33 Cal.3d 115, 128.) Here, the Jeep was the only property at issue, and the convictions of grand theft of an automobile and unlawful driving or taking of a vehicle were based on the same act. Thus, the convictions of unlawful driving or taking of a vehicle and receiving a stolen vehicle are improper. (People v. Moran (1970) 1 Cal.3d 755, 763; People v. Magana (1990) 218 Cal.App.3d 951, 954.)
DISPOSITION
The judgment is modified by striking the convictions of unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) (count 2) and receiving a stolen vehicle (Pen.
Code, 496d) (count 3). As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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[1] Statutory references are to the Penal Code unless otherwise specified.
